Lectures 17-21: Consent

I. Consent The Account II. Arguments for Consent 1. Lockes Argument from the Natural Right to Freedom 2. The Argument from Options 3. The Argument from Disagreement 4. The Argument from Personal Reasons III. The Sign Problem 1. The problem 2. Express consent 3. Tacit consent IV. Objections to Tacit Consent 1. Tacit consent is forced (Hume) 2. Tacit consent is Unclear (Green) 3. Tacit consent is Involuntary (Green) 4. Greens solution to the sign problem 1.

I. Consent
1. The Account a. Lockes Consent Theory = a state has de jure authority only if its subjects consent to the state. Locke: a subject consents to the state just in case he agrees to transfer, or give up, some of his rights to the state. b. As a theory about political obligation = a subject is obligated to obey the state only if the subject has consented to obey the state. c. Well look at arguments for the consent theory, as well as objections to the consent theory.

II. Arguments for Consent

1. Lockes Argument from the Natural Right to Freedom a. The argument: P1: If every person has a natural right to freedom, then, unless he consents, no person is obligated to do anything that undermines his freedom. P2: Obeying the state undermines a persons freedom. P3: So, if every person has a natural right to freedom, then, unless he consents, no person is obligated to obey the state. [From P1 and P2]

P4: Every person has a natural right to freedom. Conc: A subject is obligated to obey the state only if the subject has consented to obey the state. [From P3 and P4] b. The idea: someones freedom can only be taken away if they say you can take it away. The state takes away your freedom. So, the state can only take away your freedom if you say they can. Objecting to P2: Maybe obeying the state increases a persons freedom, because if nobody obeyed the state, there would be a State of Nature (chaos), and so, people would not have the freedom to live peacefully, and do all the things they want to. Possible response 1: Strong Anarchism A Strong Anarchist state would not necessarily involve a loss of freedom. Can you think of a Strong Anarchist State that would not involve a loss of freedom? Possible response 2: Hermit counterexample A hermit can live without obeying the state, yet suffer no loss of freedom. Objection?

c.

d.

e.

2.

The Argument from Options a. The argument: P1: If becoming a member (or subject) of a certain group is optional, then I am obligated to obey the groups commands only if I consent to being a member of the group. P2: Becoming a subject of the state is optional. Conc: A subject is obligated to obey the state only if the subject has consented to obey the states commands. b. Possible objection: P2 is false: perhaps it is not optional whether or not we are a subject of a state. We are born subjects of a state, it seems? Reply? Look at metaphysical question about group membership discussed later in the course.

3.

The Argument from Disagreement a. The argument: P1: If consent is not necessary for de jure authority, then it is possible for a state to have de jure authority even though all of its subjects disagree with the state.

P2: It is impossible for a state to have de jure authority even though all of its subjects disagree with the state. Conc: Consent is necessary for de jure authority. b. Possible objections: Is P1 true? Is consent necessary for agreement? i.e. is it possible to agree with the state without consenting to it? Objection to P2: Could there be a state in which all of the citizens disagree with the state, yet the state still has de jure authority? Think of a state that is the best of a bad set of alternatives Or a state in which all subjects are irrational.

4.

The Argument from Personal Reasons a. The argument: P1: A subject obeys the state for personal reasons only if he consents to the state. P2: Every person should act on personal, and not impersonal, reasons. Conc: A subject should obey the state only if he consents to the state. b. Support for P2: see Susan Wolffs argument for the claim that perfection is more important than morality. Acting to obtain perfection is acting for personal reasons; acting to be moral or to obey authority (for authoritys sake) is not. Possible objections?

c.

III.

The Sign Problem

1. The problem a. One of the most fundamental objections to consent theory is that it is difficult to provide an adequate understanding of what counts as consent. What is a good sign that someone has consented? b. There two possible answers to this question: express consent; and tacit consent (Locke); c. Well consider objections to each of these, in turn. Express consent a. Express consent theory: the state has de jure authority only if its subjects expressly consent to the state.

2.

b.

Express consent = an obvious, often verbal, intentional action explicitly expressing consent. Problem: almost no citizens express explicit consent to the state. Almost nobody says: I consent to being governed by the South African government. So, on the express consent theory, the state has de jure authority over very few subjects.

3.

Tacit consent a. Conventional consent theory: the state has de jure authority only if its subjects act in ways that are conventionally taken to mean that they consent to the state. b. Locke: consent need not be explicit, nor conventional it can be tacit: Tacit = unspoken; not openly expressed. Lockes definition = Every man, that hath any possessions, or enjoyment, of any part of the dominions of any government, doth hereby give his tacit consent, and is far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it; whether this his possession be of land, to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling on the highway By residing within the states boundaries, youre tacitly consenting to the states laws. c. Carrs formal definition of tacit consent: an action X counts as tacit consent to rule R just in case X is conventionally understood as participating in a practise P, and P is governed by R. E.g. by ordering dinner in a restaurant (X), you tacitly consent to paying for your meal (R), since you are eating the restaurants food (P), and eating the restaurants food is governed by the rule that you should pay for what you eat. d. Three problems with tacit consent: Tacit consent is forced (Hume) Tacit consent is unclear (Green) Tacit consent is involuntary (Green) e. Well consider each of these objections in turn.

IV.

Objections to Tacit Consent

1. Tacit consent is forced (Hume) a. The objecton: Consent, whether it is explicit or tacit, needs to be freely given.

b. 2.

But, you cannot freely emigrate whenever you choose it takes a lot of planning, money and courage to emigrate. So, by merely residing within a country, one is not freely choosing to stay there, because this choice is not free. Hence, one is not consenting to the government. Greens response: principle of free choosing of lesser evil (p.74)

Tacit consent is Unclear (Green) a. Objection: the rules (R) governing social practises are unclear. Thus, it is unclear which actions count as conventionally giving consent to the state. Conventional consent is more easily understood in other areas e.g. giving away your organs, or selling a house involves signing a document. But what counts as conventional consent to the state is unclear no document to sign. b. Possible response: voting is clear example of an action that should count as conventionally giving consent. Ob: people may vote for many reasons picking up a date in the queue; being able to announce proudly: I voted!; etc. These reasons do not involve consent to government. So, it would be unreasonable to say that all voting is governed by a rule that states that by voting, one consents to obey the state. Tacit consent is Involuntary (Green) a. Consent should always be voluntary i.e. be the choice of the individual subject. b. But defining consent in terms of social rules takes control over consent away from the subject, and places it in societys hands. i.e. if society decides what counts as consent, then the individual does not have full control over what he consents to. But it is important that the individual controls what he consents to, since consent should be given freely (see Lockes argument from the natural right to freedom). The problem is that if social rules govern what counts as tacit consent, then tacit consent may sometimes be involuntary on the part of the subject. c. This raises problems, especially in cases where the subject would not volunteer to consent to the state, even though social rules would say that he does consent to the state. d. For example: P1: If the tacit consent theory is true, then if John buys a property in South Africa, then John consents to obey South African laws (since John is participating the South African property market, which is governed by South African law).

3.

P2: All consent (tacit or express) is voluntary. P3: So, if the tacit consent theory is correct, then if John buys a house in South Africa, then John volunteers to obey South African laws. (From P1 and P2, by modus ponens) P4: But, it is possible for John to buy a house in South Africa, yet John does not volunteer to obey South African laws (e.g. if John is a terrorist buying a house in which he builds bombs to destroy parliament). Conc: The tacit consent theory is false. (From P3 and P4, by modus tollens) e. Carrs response 1 (pp.340-341): John does not participate in the South African property market he only participates in terrorist practices. So, he does not tacitly consent to South African laws. Thus, P1 is false. Response 1: contradicts Lockes definition of tacit consent. Response 2: makes judging which actions imply tacit consent unclear (see Greens objection from unclarity above). Carrs response 2 (p.341 and footnote 14)?

f. 4.

Greens solution to the sign problem a. Green says that because of the objections to the tacit consent account, we should adopt the explicit consent account, and bite the bullet on the objection that very people consent explicitly. b. Thus, Green argues that philosophical anarchism is true, since the state does not have sufficient explicit consent among its subjects. c. Consent theorists are usually not philosophical anarchists so they would not want to accept this conclusion.